As the rape case against basketball star Kobe Bryant proceeds,
expect to see the alleged victim's past on trial too - both inside
and outside the courtroom.
A Colorado judge allowed the case to go forward Monday one week
after Mr. Bryant's defense attorneys introduced lurid evidence of
the accuser's other sexual experiences at a preliminary hearing.
Like most states, Colorado has a "rape shield law" that generally
protects victims from disclosures about their sexual conduct or
reputation before or after an alleged assault. But the Colorado law
includes two exceptions: evidence about prior sexual conduct with
the defendant and evidence that might show the acts charged were not
committed by the defendant.
Now, in the highest-profile criminal prosecution since O.J.
Simpson's trial a decade ago, the balance between a defendant's
right to a fair trial and an accuser's rights under the rape shield
law will be tested.
The disclosures already made in the Bryant case show that rape
shield laws don't completely prevent allusions to the sexual history
of accusers. Advocates of victims' rights say such disclosures show
precisely why rape shield laws are necessary, arguing that a
defendant's guilt or innocence should related to his or her own
behavior, not that of the alleged victim.
"[The rape shield laws are] not complete protection," says Paul
Campos, a law professor at the University of Colorado. "They give
rape victims some protection against being blindsided by the
introduction of information about their sexual past, but it's far
from complete protection by any means."
Defense attorneys continue to look for ways to circumvent
protections of rape shield laws, says Claudia Bayliff, a Niwot,
Colo., attorney affiliated with the NOW Legal Defense and Education
Fund. "The goal is make the victim appear promiscuous and as a
result appear less likely to tell the truth," she says.
Defendants have good reason to want to provide jurors with as
much information as possible about victims' sex lives. Social-
science research suggests jurors are as likely to assess defendants'
guilt based on their view of victims' virtue as based on physical
evidence presented, says David Bryden, a University of Minnesota law
Jurors consider whether a victim resisted, complained promptly,
or had a good reputation. "They do give weight to whether the victim
behaved in a circumspect way or in a careless way and whether she
appears to be sexually restrained or unrestrained," says Mr. …